Category: Copyright Law

In a previous post, I had made a cursory remark on the WIPO Treaty on the Protection of Broadcasting Organizations (WBT). Since the commencement of the negotiations for the WBT, the Indian delegation has expressed its reservations on some of the key provisions. This is possibly because voice has been expressed that no objective reason for the WBT had been established. However, this is far from true.

Ahead of the 32nd Standing Committee on Copyright and Related Rights (SCCR), scheduled from May 9th to May 13, 2016, I will highlight India’s position in the last two SCCRs. The upcoming SCCR could be decisive for the multilateral norm-setting by WIPO for protection of broadcasting organizations. I’ll highlight that there is a compelling need for India to support the WBT.

Past Position:

On a general reading of India’s official statement at the last two SCCRs, it’s clear that India is willing to engage in a dialogue with divergent stakeholders and possibly support the treaty once it’s assured that an equilibrium between the copyright owners, the disseminators and consumers is established.

At the 31st SCCR, December, 2015 :

The Indian delegation maintained its prior position of the proposed broadcasting treaty to conform to the mandate of the 2007 General Assembly : adoption of a signal based approach strictly confined to traditional broadcasting and cablecasting. Exclusion of webcasters, computer networks, simulcasters or near – live or deferred transmission which it believes were based on different investment models.

Against the inclusion of post-fixation rights in WBT as it believes that the scope of protection only covered signal protection.

Flexible about considering fixation for rebroadcasting and time-shifting purposes.

Supportive of limitations and exceptions for private use, for reporting current events, for education and scientific research and ephemeral fixation by broadcasting organizations for using its facilities and for its own broadcasts.

At the 30th SCCR, July, 2015 :

Supportive of unauthorized live transmission of signal over computer networks only if the broadcasting organization had rights over the content.

Strictly against creation of an extra – layer of rights over content for which broadcasters had a licence to broadcast only.

Against a new “right of authorisation” as the “right to prohibit” covered the situation.

Against post- fixation rights and in favour of limitations and exceptions.

Considerable opinion on the failure of the proponents of the WBT to elucidate its need has been voiced. Though, I’m of the view that the rai·son d’ê·tre for the WBT is firmly established.

Section 40 A (1) of the Indian Copyright Act, 1957 affords protection to foreign broadcasters against signal piracy in India. However, this reciprocity was unavailable to Indian broadcasters in most foreign countries. Hence, in the absence of an international legal framework, Indian broadcasters do not have a standing to sue under domestic legislation of a country where their signal is pirated. This calls for harmonization of legal protection afforded to broadcasters across all jurisdictions. The WBT is a step in that direction.

An opinion has been voiced that there was no need for the WBT as the Indian Copyright Act, 1957 had the same protection measures for broadcasting organizations as envisaged by the WBT. However, this is far from true. Neither does the Indian Copyright Act, 1957 protect pre – broadcast signal nor does it clearly spell out the ownership of Broadcast Reproduction Right. Hence, the WBT was imperative to fill the existing lacuna in domestic legislation

Studies have indicated that given the wide availability of pirated Indian movie content on the Internet, its demand was rampant. Majority of the probable consumers of these pirated movies were million of consumers residing abroad. Hence, there is a high probability of popular Bollywood movies being transmitted on new media platforms. If the WBT extends protection to illegal transmission over internet, it would go a long way in preventing loss of revenue to Bollywood on account of signal piracy. Losses on account of music and movie piracy are massive, with industry reports valuing it to approximately $4 billion per year. Further, India has the highest rates of video piracy in the world, underscoring the need for an effective international legal framework for protection of broadcasting organizations.

The WBT has found considerable support amongst Indian Broadcasters. Even then, the Indian delegation had not resonated the views of its own industry in the past SCCRs.

Inclusion of limitations and exceptions in the WBT has been expressed by the Indian delegation. However, it has faced stiff opposition from the majority particularly the European Union. A via media to solve this deadlock can be adopted. Provision for Exceptions and Limitations based on the industry or culture of the Member States or as provided by their national legislation may prove to a fruitful strategy. Same position has been adopted in several other international treaties. Example : Article 16 of the WIPO Performances and Phonograms Treaty.

Conclusion and Way Forward :

The last WIPO General Assembly ended in a political stalemate over several issues, with national delegations of various countries not supporting the WBT due to divergence of views. The WBT is perhaps the only IP treaty till date which is bereft of the classic North – South differences. Hence, these divergence of views is preposterous.

Signal piracy not only impedes the growth of Indian broadcasting industry severely but even causes substantial loss of revenue to Bollywood. Given this and the critical stage of negotiations, India should wholeheartedly support the WBT at the upcoming SCCR , which will be decisive for determining its fate. ” It’s Now or Never!“.

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From my abode of a year and a half (Gelman Library’s top floor), I wish all readers a very happy world book and copyright day! Not only are books a man’s closest companion but as Shakespeare puts it, “a force to counter the common curse of mankind – folly and ignorance“. The World Book and Copyright Day is celebrated by UNESCO to commemorate Shakespeare’s death anniversary and to promote the culture of reading, publishing and copyright.

This phrase, ” the culture of reading, publishing and copyright” poses an interesting quandary. The quandary being the jurisprudence of copyright protection. Between 1589 and 1613, when Shakespeare produced his seminal literary works, there was no form of copyright regulation in England. Nevertheless, the Bard of Avon was undeterred to pen his thoughts. It was only after many years of his death, that the first IP legislation – the Licensing of the Press Act, 1662 was enacted in England. Even then, it was only in 1710 with the passage of the Statute of Anne by the British Parliament that copyright protection was conferred to literary works. Hence, testifying that copyright was not necessarily an incentive for creative expression, for one of the greatest English writers flourished in absentia of a copyright regime.

Infact, just last night over dinner I was asked about the copyrightability of certain English works. My father’s dear friend – Mark Turner has a quaint hobby of collecting Regency charades (a form of rhyming riddles) and subsequently blogging about it. Due to their antiquity, locating original versions was not only difficult but extremely expensive. However, he was successful in procuring their reprints from various sources and is perhaps one of the handful owners in the world of such a Collection.

He asked me if he was violating copyright law, even though it was purely a non – commercial activity. Considering that these charades were written during the Regency period, which ran roughly from 1776 through the 1830’s, they were copyrightable subject matter under the Statute of Anne (which was enacted in 1710). He breathed a sigh of relief on being told by me that he need not worry. All these works had fallen into public domain and could be used without seeking permission of their authors. Another interesting thing about these riddles is that majority of them were penned under a pseudonym. Had these works not fallen into public domain, a bigger issue of orphan works had to be combated. (On a side note, try guessing some of these riddles. Apart from being fun, they’re a good exercise for the gray cells!)

On the World Copyright Day, I want to highlight this year’s two noteworthy copyright developments at the domestic and international front –

(i) The transfer of the Indian Copyright Office from the Ministry of Human Resources and Development to the Department of Industrial Policy and Promotion. I’ve written about this here.

(ii) A very critical time for the WIPO Broadcasters Treaty (The Treaty) : The 47th WIPO General Assembly ended in a political stalemate over several issues on the impeding WIPO Broadcasters Treaty. In the upcoming WIPO Standing Committee on Copyright and Related Rights (SCCR), if the national governments do not explicitly come out in support of the Treaty, it could spell doom and perhaps mark the end of a road map for an international legal framework for protection of broadcasting organizations.

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The harbinger of India’s IPR Policy is the latest to be mired in a plagiarism row. Allegations have been levied against the Department of Industrial Policy and Promotion for plagiarizing several portions in the recently released consultative paper on Standard Essential Patents.

I did’nt have the chance to dig deeply into the paper (being swamped with my own research paper! ). If true, this is reflective of a very disturbing trend. Coming up with something original is arduous but giving credit not so much.

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Some of you may be aware that one of my published note was mired in a controversy wherein I had suspected it to be plagiarised by a law firm. Though the matter has been resolved ( gladly the partner understood my concerns and pulled it down from their website), the reaction it garnered was somewhat surprising.

Apart from minor overlaps, copyright infringement and plagiarism are quite distinct. While it is normal for a layman to be unable to distinguish between the two, same is not expected from IP lawyers. Hence, I’ll take this opportunity to differentiate between these two, often interchangeably used terms.

Plagiarism is usually an academic wrong and is not per se illegal (Hence, the paradoxical title of this post!) While, copyright infringement subsists even in non – academic settings and is illegal. It is a codified wrong under a country’s copyright law ( 17 U.S.C § 501 is the U.S. law on copyright infringement while it’s Indian counterpart is Section 51 of the Indian Copyright Act, 1957)

Hence, it may be perfectly legal to plagiarize someone’s work, ethically it would be on shaky grounds. (especially if the plagiarist happens to an academic or a student writing a class paper)

(II) The Idea- Expression Dichotomy : Paramount Difference

The idea-expression dichotomy recognized by Article 9.2 of TRIPS is the paramount distinction between copyright infringement and plagiarism.

For a copyright infringement claim to be successful, it is imperative for the expression which embodies an idea to be copied. Whereas, plagiarism exists when ideas are stolen or passed off without due attribution even if there is no replication of the fixed expression. (See here for Oxford’s definition of plagiarism)

Substantially paraphrasing an author’s sentence or quote is not copyright infringement but could be plagiarism if the main essence or idea behind the author’s work is lifted without due credit. Infact, there is an acute unawareness about paraphrasing being one of the types of plagiarism.

Oxford classifies paraphrasing as a type of plagiarism. It is defined as –

“Paraphrasing the work of others by altering a few words and changing their order, or by closely following the structure of their argument, is plagiarism if you do not give due acknowledgement to the author whose work you are using.”

Thus, two academic articles on the same topic may be strikingly different ( in terms of the expression conveying the idea) but may nevertheless be plagiarized if there is an intellectual hijack over an author’s research or the argument conveyed without due acknowledgement. Further –

“A passing reference to the original author in your own text may not be enough; you must ensure that you do not create the misleading impression that the paraphrased wording or the sequence of ideas are entirely your own.”

Claiming proprietary ownership over an idea or the sequencing of ideas ( since the way an author chooses to structure his/her work is an idea in itself) without due attribution would be plagiarism. Same holds true for a compilation of views and opinions of others, even if paraphrased ( For more on academic plagiarism, read here)

(III) Remedies : When Suing is an Option?

Unfortunately, the girl’s name SUE is not a remedy for most types of plagiarism! Though it is a gross violation of academic integrity with potential serious consequences ranging from expulsion of students, to academics losing their jobs ( the ex- DU VC Dr. Dinesh Singh was charged with plagiarism by the Delhi University Teacher’s Association, though the charges were not proved) and an overall tarnishing of a scholar’s image.

(See here for remedies under US Copyright law and here for remedies under Indian Copyright law)

CONCLUSION:

With recent advancement in technology, it is easy to spot copyright infringement. However, academic plagiarism (especially plagiarism by paraphrasing) due to it’s unpredictable nature is often difficult to spot and subsequently prove.

Given the degree of shrewdness required to camouflage an intentional academic plagiarism, I view the plagiarist as a bigger pirate than the copyright infringer (not to say that copyright infringement is a lesser offence).

COPYRIGHT POLICY

1. As an ardent supporter of the open access movement, the author does not assert any proprietary rights over the content for lawful non-commercial usage. However, due attribution and appropriate link back to the original content will be appreciated.

2. Due to the mammoth research effort involved in writing a post, usage beyond "fair use" and for "commercial purposes" is strictly prohibited albeit author's express written consent.

3. Users are urged to be mindful of third party proprietary rights in the content (including images, if any). In case of confusion, kindly contact the author at ssharma2@law.gwu.edu for clarification on "third-party rights". Clarification on the meaning of "third-party rights" WILL NOT constitute binding legal advice.